The ‘Loophole’ That Could Allow NSA to Conduct ‘Warrantless Searches…of Law-Abiding Americans’

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The information about the National Security Agency’s surveillance capabilities just keeps coming. The Guardian revealed Friday a previously undisclosed loophole that showed how the NSA could legally conducted warrentless searches on Americans’ phone calls and emails singling them out by name or other identifying information.

It’s this latter part that The Guardian says is “the first evidence that the NSA has permission to search those databases for specific U.S. individuals’ communications.”

A provision of the FISA Amendments Act Section 702 that some believe could have a loophole that allows for Americans to be search in NSA databases by name, potentially without a warrant. (Image: The Guardian)

Here’s more from its analysis of the document and this specific loophole:

While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data,” the glossary states, “analysts may NOT/NOT [not repeat not] implement any USP [US persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Office of the Director of National Intelligence].”

The term “identifiers” is NSA jargon for information relating to an individual, such as telephone number, email address, IP address and username as well as their name.

The document – which is undated, though metadata suggests this version was last updated in June 2012 – does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place.

“Section 702 [of the of the FISA Amendments Act] was intended to give the government new authorities to collect the communications of individuals believed to be foreigners outside the US, but the intelligence community has been unable to tell Congress how many Americans have had their communications swept up in that collection,” Sen. Ron Wyden (D-Ore.) told The Guardian.

Sen. Ron Wyden (AP/Benjamin Brink)

“Once Americans’ communications are collected, a gap in the law that I call the ‘back-door searches loophole’ allows the government to potentially go through these communications and conduct warrantless searches for the phone calls or emails of law-abiding Americans,” he said.

Wyden told The Guardian he has expressed to the president that Section 702 needs to be reformed “to provide better protections for Americans’ privacy.” Considering Section 702 useful for intended surveillance goals though, he believes reforming it could be done “without losing the value that this collection provides.”